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(..2..)
Law Making
India’s New Parliament
Q.1. Do the courts make laws in the process of interpretation? Supplement your answer
with relevant examples.
Q.2. Explain the process of interpretation. How have the courts helped the development of
laws through judicial activism?
Q.3. Explain fully the process of lawmaking and comment on the Supremacy of Legislative
law over judicial lawmaking. What are the constraints on judicial lawmaking?
I. INTRODUCTION: -
In Modern times and democratic societies, legislation is one of the important
sources of law. Legislation as a source of law is of recent origin. As civilisations advanced,
custom as a source was replaced by legislation.
Legislation is a source of law which consists of the declaration of legal rules by the
competent authority. The term legislation is used in different senses. In its widest or most
generic sense, it includes all forms of lawmaking. In this sense, legislation includes
lawmaking in any form, such as judge-made laws, laws between parties created by
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contracts, rules made by legislatures, etc. However, in its narrower sense, legislation is the
laying down of legal rules by sovereign or subordinate legislation. In this sense, the term
legislation is considered in modern times and in this topic. Therefore, legislation in this
sense is called an 'enacted law'; all other forms of laws are called 'un-enacted' laws. In other
words, legislation consists of 'the declaration of legal rules by a competent authority,
conferring upon such rules the force of law".
In modern democratic states, legislation is vested in an independent
legislative body, which usually consists of elected members from citizens of the country.
In England, Parliament legislates, and it has unlimited power of legislation. In India also,
Indian Parliament legislates; however, it has some constitutional restrictions.
According to the traditional theory and constitutional provisions, the Government
has three organs: the legislative, the executive, and the Judiciary. The legislature (i.e.,
Parliament and State Legislature) has to make statutes (i.e., laws). The executive (i.e., all
Governmental departments, ministers, etc.) enforces the law and conducts administrative
affairs. The Judiciary (i.e., Supreme Court and High Courts) administers the justice and
interprets the statutes. No organ can interfere in another's field.
The most important function among these three is legislation. In an ideal
State, the legislative power must be exercised exclusively by the legislators because they
are elected (members of the Parliament and the State Assemblies) by the people (electorate)
to make laws for them and are directly responsible to the people.
II. Lawmaking powers in Federalism:-
In Federalism, it is very important to lay down an accurate scheme of distribution
of powers between the Central and the State Governments to avoid conflicts. Therefore, it
is important to study Centre-State Relations in the federal Constitution. The relations
envisaged in the Constitution are of Cooperative federalism. Under this topic, we will
discuss legislative relations.
Legislative Relations (Art. 245-255):-
The division of legislative functions between the Centre and State is two-
fold, i.e., territory-wise and subject-wise.
1. Territorial Jurisdiction of Legislature (Art. 245):-
The Parliament is empowered to make laws for the whole or any part of the territory
of India. Similarly, the State legislatures are empowered to make laws for the whole or any
part of the State (Art. 245 (1)). The law made by Parliament is not invalid merely because
it has extra-territorial operation (Art. 245 (2)). However, the State law having operations
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outside the State is not valid. To determine whether the law passed by the State legislature
has an extra-territorial operation, the principle of 'territorial nexus' is to be invoked. It
provides that the State law having the extra-territorial operation is valid if there is a
sufficient connection between the State and the object of passing the law.
In State of Bombay vs. R.M.D.C.
Facts- the Bombay State levied a tax on lotteries and prize competitions in Newspapers.
The tax was extended to a newspaper printed and published in Banglore (Karnataka State)
but had wide circulation in Bombay.
S.C. Held:-that a sufficient territorial nexus exists to enable Bombay State to tax the
newspaper.
2.
Subject-matter-wise jurisdiction:-
Art. 246 lays down the subject-matter-wise distribution of powers between
the Union and the States. Art. 247 provides for Schedule VII in Constitution; there are three
Lists, viz.-the Union List, the State List, and the Concurrent List.
List-I- The Union List: -
List-I- The Union List comprises 97 subjects, matters, or items. The subjects
mentioned in the Union List are of national importance and require the Union Parliament
to pass laws on them. Subject matters contained in it are defense, foreign affairs, banking,
currency and coins, railway, postage, Union taxation, etc. The Parliament has exclusive
power to make laws on any of these 97 subjects mentioned in the Union list.
List-II- The State List:-
The State list consists of 66 subjects. These subjects are of local importance
and therefore require the State to make laws on them. These subjects are public health and
sanitation, agriculture, forest, fisheries, education, state taxation, maintaining law and
order, etc. The State has exclusive power to make laws on any subjects mentioned in the
State List.
List III- Concurrent List: -
It consists of 47 subjects. Both the Centre and the State can make laws on the
subjects mentioned in this list. But in case of a conflict between laws passed by the Center
and the State on the concurrent list subject, the law passed by the Center shall prevail. (Art.
254 (1)).
The Residuary power (Art. 248): -
The Parliament has exclusive power to pass laws concerning any new
matter not mentioned in either of these lists (Art. 248 and Entry 97 of the Union list). So a
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subject like cybercrime (i.e., computer), a new one ((i.e., not mentioned in either of these
lists) empowers Parliament to make law on it.
Principles of Interpretation of the Lists -
Though legislative powers are divided between the Centre and the States, it
is not a scientific division. Questions usually arise as to whether a particular subject falls
in the sphere of the Union or the State Government. It is the duty of the Supreme Court to
solve this problem. Therefore, the Supreme Court has evolvedthe following rules to solve
the above problem. -
1.
2.
3.
4.
Pre-dominance of the Union List.
Each entry is to be interpreted broadly.
The Doctrine of Pith and Substance.
The Doctrine of Colourable Legislation.
(We have discussed them in detail in the topic "Principles of Constitutional
Interpretation)
III. Lawmaking process of Parliament:-
The parliamentary form of Government is also known as the Cabinet form of
Government or Westminster Model. Our Parliamentary system is based on British Model.
Parliament of India consists of three organs, viz.–President, Council of States (i.e., Rajya
Sabha), and the 'House of the People ((i.e., Lok – Sabha). Though President is not a member
of either House of the Parliament, like the British Crown, he is an integral part of the
Parliament and performs certain functions like summoning both Houses of the Parliament,
giving assent to Bills, and dissolving the House of People, etc. However, like the Indian
President, American President is not part of the legislature.
The essential function of the Parliament is lawmaking. The legislative procedure is
initiated in the form of a Bill. A Bill is a draft of the proposed law. A Bill is a draft statute
that becomes law (Act) after it is passed by both Houses of Parliament and assented to by
the President. All legislative proposals are brought before Parliament in the form of Bills.
The Bills are of two types (i) Ordinary Bill and (ii) Money Bill. There is a difference in the
procedure for passing these Bills.
Moreover, a bill may be moved by the minister or by any member of the parliament.
When a minister moves a bill, it is called a "Public Bill" or "Government Bill". Since
moved by the minister, it reflects the government's policy, gets the ruling party's backing,
and guarantees its passing. If it is defeated in the lower chamber of parliament, the
Government may resign being lost the majority. Whereas when any member of the
parliament moves the bill, it is called a "Private Bill" or "private member's bill". The
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concerned member drafts it. It needs one month's prior notice before introducing the bill in
the House. It seeks to bring the Government's attention to what certain members or
members believe to be an important subject upon which law needs to be made. Often it
reflects the opposite party's view. There is less likeliness of passing such a bill. The
procedure for passing these bills is the same.
1. Process for the passing of Ordinary Bill (Art. 107):-
a) Its Origination –
An ordinary Bill is a Bill other than a money bill. It may originate (introduced) in
procedure is similar to passing laws in legislative assemblies of the states.
First reading:-
Legislation begins with the introduction of a bill in either house of Parliament.
(i) An ordinary Bill can be introduced in either house of the legislature by either a minister
or a private member.
(ii) If a Bill is being introduced by a private member, he has to state his intention behind
the introduction of the Bill and ask for leave to introduce it.
(iii) The bill is introduced by reading the title and the objective behind it.
(iv) After the introduction of the bill, the bill is published in the Official Gazette, even
before the introduction of a bill, it can be published in the Official Gazette, after taking the
proper permission of the speaker.
Second Reading:-
After the introduction of the Bill, the member in charge of the bill will initiate one of the
following procedures:-
(i) The bill may be taken into immediate consideration, or the date must be decided when
the bill is to be considered.
(ii) The bill can also be referred to the Select Committee of the House (for detailed studies
and submitting its report).
(iii) The bill can be referred to the Joint Committee of the House with the concurrence of
the other House.
(iv) It can also be circulated to elicit public opinion.
The House, after receiving the report from the Select Committee, considers and
deliberates further on the Bill. It is scrutinized, and each clause of the bill is discussed and
voted upon separately.
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Third Reading:-
The final fate of the bill is decided at this stage. No further discussion or consideration
regarding the bill is permitted at this stage, and no amendments to the bill are allowed.
(i) The bill is considered as passed in the House, where it was introduced if the majority of
the members present and voting in the house accept the bill.
(ii) It can also be rejected if not voted by the members of the House.
b) Procedure in the second House:–
When the ordinary Bill is passed in one House and sent to the other House for its
assent, the Bill has to pass through all the three reading stages already discussed, and then
the second House may adopt one of the following four options-
i)
Agree to the Bill; or,
ii)
iii)
iv)
Reject the Bill altogether or,
Pass the Bill with an amendment or,
Withhold the Bill (without passing). However, if the other House withholds
the Bill for up to 6 months, the President may summon both Houses of Parliament. If, in a
joint sitting of the two Houses, the Bill is passed by a majority of the total number of
members of Both Houses present and voting, it shall be deemed to have been passed by
both Houses (Art. 108 (4)).
c) President's Assent:-
Even though both Houses of Parliament pass the Bill, it would not become
law unless assented to by the President. According to Art. 111, when both the Houses of
Parliament pass Bill, it is sent to the President for his assent. Then President may either-
a) give his assent to the Bill, or
b) he may withhold his assent (vetoing of Bill), or
c) he may return the Bill, suggesting amendments to it.
Then the House shall reconsider the Bill.
However, if the Bill is again passed by the Houses (with or without amendment) and
presented to the President for his assent, he shall give his assent to it.
However, when the President withholds the Bill in case (b), it is vetoing the
Bill; however, if the President does not veto the Bill but sends it back to the House for
reconsideration, the power of veto finishes.
2. Money Bill and Process for its passing: -
Since finance is an important factor in the welfare of society, it has been given some
special consideration and importance.
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A) Money Bill Defined (Art. 110(1)) –
A money bill deals only with any of the following matters: - viz.
Tax –
a)
Imposition abolition, remission, alteration, or regulation of any tax.
b) Government borrowing: -
Regulation of the borrowing of money or the giving of any guarantee by the
Government of India,
c) Consolidated Fund: -
i)
Custody of the consolidated or contingency funds, the payment or withdrawal from
such funds.
ii) Appropriation of money out of the consolidated fund of India.
iii) Declaration of any expenditure to be charged on the consolidated fund of India.
iv) Receipt of money on account of the consolidated fund of India or the Public account
of India or the custody or issue of such money or the audit of the accounts of the Union or
the states.
d) Incidental matters: -
Any matter incidental to any of the matters mentioned above. But a Bill is not a
money bill by reason that it provides for –
a) Imposition of fine or other pecuniary penalties, or
b) Payment of fees for license or services rendered, or
c) Imposition, abolition, remission, alteration, or regulation of any tax by any local
authority or body for local purposes (Art. 113(2))
If any question arises as to whether the Bill is a money bill or not, the Speaker of
the Lok Sabha's decision is final. Therefore when the money bill is sent to the Rajya Sabha
or the President for assent, a certificate of the Speaker that it is a money bill shall be
endorsed on it (Art. 110 (4)).
B)
Procedure in respect of the passing of money Bill :-
a) Its Origination: -
A money bill can only be introduced in Lok- Sabha and not in Rajya- Sabha
(Art. 109 (1)). It can only be introduced with the recommendation of the President.
b) It's Passing: -
i)
After the money bill is passed by the Lok-Sabha, it is sent to the Rajya Sabha for its
recommendations.
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ii)
Rajya Sabha should return the Bill to the Lok-Sabha within 14 days from the receipt
of it with its recommendation; if not returned within 14 days, the Bill is deemed to have
been passed in the Rajya Sabha.
iii) Lok Sabha may either accept or reject all or any of the Recommendations of the Rajya
Sabha. If the Lok Sabha accepts any of the recommendations made by the Rajya Sabha or
rejects all the recommendations, the Bill shall be deemed to have been passed by both
Houses.
c) President's assent (Art. 111):-
The procedure for passing a money bill is the same as an ordinary Bill with minute
changes. In the case of a money bill, the President may either give his assent or refuse his
assent. Whereas, in the case of an ordinary bill, he can also refer the Bill back for
reconsideration with amendments.
C)
The distinction between 'Money Bill and Financial Bill': -
The only similarity between 'Money Bill' and 'Financial Bill' is that they can only
be originated in the Lok Sabha, and the President's recommendation for its introduction is
required.
Following are some of the differences between a 'Money bill' and a 'financial bill'
viz–
1. All 'Money Bills' are financial bills, but not all financial bills are money bills.
2. A money bill is a bill that contains only matters mentioned in the Article. 110(1).
Whereas a financial bill deals with not only matters mentioned in the Article. 110(1), but
other matters also.
3. Rajya Sabha can not reject money bills. Whereas a financial Bill, unlike ordinary Bill,
can be rejected by the Rajya Sabha.
4.
Money bill for its passing requires special treatment. In comparison, a financial Bill
is passed as an ordinary bill.
Thus except above special procedure, financial bills are treated as ordinary bills.
IV. THE STATE LEGISLATURE: -
Like the Central Government, the State Government is also of the
Parliamentary and Cabinet types and closely follows the model of the Central Government.
The Constitution provides for establishing the legislature in every State in the Union of
India. The legislature of every State consists of the Governor and House (i.e., Legislative
Assembly/Vidhan Sabha) or Houses (i.e., Legislative Assembly and Legislative Council,
i.e., Vidhan Parishad). The legislature in the State is either a bicameral (i.e., consisting of
two Houses) or a unicameral (consisting of one House only, i.e., Legislative Assembly).
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Legislatures in Bihar, Tamil Nadu, Maharashtra, Karnataka, and Uttar
Pradesh are bicameral. In the remaining states, it is unicameral. The Legislative Assembly
(i.e., Vidhan Sabha) is similar to the Lok Sabha in Parliament, and the Legislative Council
(i.e., Vidhan Parishad) is similar to the Rajya Sabha in Parliament.
The procedure of making laws is the same as that of Parliament for passing laws in
legislative assemblies of the states.
*****
Judicial Law-Making
I. Introduction
In fact, law Judicial legislation is nothing but law pronounced, proclaimed, and
declared by the higher Judiciary while interpreting existing law. It is the reasoning which
a judge gives for a decision in a judicial verdict. It is also known as "judicial lawmaking"
or "Judge-made law". Even though enacting a law is the constitutional prerogative of the
legislature, there may be circumstances where the existing laws made by the legislature
need to be revised in the process of administration of justice. In such a situation, the
Judiciary interprets it in such a way that the law becomes practicable. Judicial lawmaking,
as we understand it, means the judicial interpretation/reasoning of law in judicial decisions.
II. Power of lawmaking:-
Constitutional Provisions:-
Judge-made law or judicial lawmaking is also formally recognised under Article 13
(the Supreme Court can declare the law passed by the legislature as unconstitutional if it
violates any of the fundamental rights). Even considering the wide powers of the Supreme
Court under Article 32 (The Supreme Court can restore fundamental rights by issuing the
writs of Habeas Corpus, mandamus, quo-warranto, etc.). The High Courts also have the
power to issue these writs (Article 226). Article 227 (provides for the High courts' power
of superintendence over all the Courts and Tribunals throughout the territory of India), 141
(Article 141 of the Constitution stipulates that the law declared by the Supreme Court shall
be binding on all Courts within the territory of India.) and 144 (Provides that all authorities,
civil and judicial, in the territory of India shall act in aid of the Supreme Court). Thus, it is
quite clear that the Constitution has bestowed the court with legislative power. Thus,
1 Prof. Bhatta Charyya, in “The Interpretation”.
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through judicial review of legislative action, the rule of precedent, and the power of issuing
writs, the Indian Judiciary makes laws.
Legal Realism School-
Judicial lawmaking is a concept of American Legal Realism.
According to Realists, 'law emanates from judges'. Therefore, the law is what courts
do and not what they say.
In 1930, some American Jurists like Holmes, Cardozo, and Grey stressed the need
to study law as it actually works and functions.
According to Realists, 'judge-made law is only genuine law', and they do not give
any heed to the laws enacted by legislatures.
Realists believe that 'certainty of law is a myth'. According to Jerome Frank,
"unless and until the court actually decides, there is merely guesswork of lawyers as to
what the court will decide."
The recent trend of public interest litigation has somehow widened the scope of realism in
India. Public Interest Litigation is also called 'Social action litigation20
III. Some instances of judicial lawmaking:-
In India, courts have ample scope to interpret laws in their contextual and social
settings. Several landmark judgments have laid down new legal norms.
1. In Keshavanand Bharti's case, the Supreme Court has introduced the 'basic structure
Doctrine'.
2. In Maneka Gandhi's case, the court has expanded the scope of the 'right to life and
personal liberty'.
The Supreme Court held the state liable for not releasing prisoners for more than 14
years, even after the acquittal order. The court ordered the state to pay compensation to the
prisoner.
To avoid tender-aged children from abuse, the Supreme Court laid down guidelines
for the adoption of children.
2 (1983) 4 SCC 141
3 (1984) 2 SCC 244
4 (1998) 1 SCC 471
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In this case, a PIL veteran Advocate M.C. Mehta filed a writ petition seeking a
mandamus to prevent the leather tanneries from disposing of domestic and industrial waste
and effluents in the River Ganga.
The Supreme Court opined that the environment should be made a compulsory
subject in schools and colleges so that there would be a general growth of awareness. It
also issued guidelines for the prevention of Ganga water pollution.
case'. In which the Supreme Court introduced the principle of "polluter pays" to recover
compensation from those who do pollution and compensation to the victim.
Similarly, in a number of other cases,
restrictions on the centre’s powers of issuing Presidential rule under Art. 356. In Vishaka
laid down guidelines/protections regarding the arrest of a person, which police have to
ragging guidelines to prevent ragging in colleges and educational institutions. Thus, the
court has laid down guidelines for preventing smoking in public places, police reforms,
Public distribution schemes to protect live-in relationships, etc.
IV. Advantages of precedent and judicial lawmaking:-
Precedent has a prominent place in legal practice; it is because of the following
reasons.
1) Keeps uniformity in the legal system-
Being bound to a subordinate judiciary, the doctrine of precedent keeps uniformity
in the legal system. It curtails the discretion of judges to decide cases at their whim. The
precedent sets a legal position as to a particular point of law, which all courts need to
follow.
2) Provides useful guidance-
5 (1989) 2 SCC 540
6 (1994) 3 SCC 1
7 (1997) 6 SCC 141
8 (1997) 1 SCC 416
9 (2001) 6 SCC 577
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The precedent, being based on vast experience, maturity, and diligence (specifically
of the higher Judiciary), guides the subordinate Judiciary on particular points of law.
3) Saves labor and time of judges and advocates-
The precedent being refined and settled legal position saves labour and time of
judges and Advocates in searching for correct legal possession on particular points of law.
4) Shapes laws to fit ground realities-
Precedent shapes law enacted by legislatures to the actual realities of practice.
Legislatures may make laws in Houses, whereas judges apply them in practice. Therefore,
precedent shapes law according to ground reality and problems that the legislature may not
experience. Keshavanand Bharti's case brought the doctrine of 'basic structure' into
practice. It fills the lacunas in legislation and makes it practicable.
5) Provides flexibility-
To fit into actual problems, precedent moulds laws made by the legislature.
Moreover, precedent can also be changed by the higher Judiciary; therefore, it provides
flexibility in the judicial system; e.g., the case of Manika Gandhi changed the trend set by
A.K. Gopalan's Case. It suits the changing time.
6) Clear legal point is made known in advance-
The precedent settles the legal position crystal clear on a particular law point
(involved in that case). Therefore, in advance, it provides knowledge to Advocates and
parties as to what is correct legal possession in subsequent cases on similar points or facts.
Thus, precedent makes known the exact legal position in advance.
7) Easy to understand-
Being related to and involved in facts, precedent is easy to understand by reading cases.
8) Precedent is perfect law-
Compared to the law made by the legislature, precedent is crystallized and perfect.
9) Older source of law-
The practice of judge-made precedent law is older than legislation of recent origin.
The advantages of precedent are the binding force of the doctrine of precedent.
V Disadvantages of precedent/Judicial lawmaking-
Precedent/judicial lawmaking has the following disadvantages compared to
legislation.
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1) Practically difficult –
High Courts and the Supreme Court pronounce several judgments daily, and
many reporters report them; therefore, it becomes challenging to find the exact case law
applicable to the case at hand.
2) Lacks binding force of State-
According to Bentham, precedent is not law because it lacks the binding
force of the State. However, according to Austin, 'Judges are agents of the sovereign;
therefore, the law pronounced by them is good law'.
In fact, in India, the "Judiciary" gets recognition from the sovereign Constitution.
Therefore, undoubtedly, the Judiciary is a sovereign wing, and the rule of precedent has
got recognition in Art. 141, therefore, has binding force.
3) Incomplete-
According to Sir Fredric Pollock, the law based on the case law needs to be
completed because it is pronounced only on the particular fact and point of law involved
in that case.
4) Overlooks rule of natural justice-
Some jurists like Bentham object that the law of precedent overlooks the rule of
natural justice. i.e., the law must be known before it is actually enforced. However,
precedent comes into existence after a problem comes before the court.
5) Conflicting Judgments-
In several cases, we find conflicting judgments of higher courts. In such
circumstances, following any particular judgment as a precedent becomes very difficult.
Specifically, one can find many conflicting judgments of higher courts in criminal matters.
6) No standard to determine the validity of precedent-
There exists no standard to determine the validity of a law made by case law.
7) Erroneous decisions create practical problems –
Erroneous decisions create practical problems for the subordinate Judiciary because,
however bad such judgment may be, the lower Judiciary has to follow it.
8) It gets repealed when the legislature makes a law on the point.
9) Causes extra pressure on traditional judicial work.
In conclusion, it may be said that judicial lawmaking is also an important source of
law to fill the gaps between theoretical law and practical law. The judiciary makes the
theoretical legislative law a practical reality.
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10) Not accountable to people:-
Like legislatures, the Judiciary is not directly accountable to the public.
References:-